Results matching “first”

Should prison inmates be given access to computer to do legal research for their pro se appeals, habeas petitions, peanut butter suits, etc.?  Sure, why not, one might say.  Well, this NLJ story by Sheri Qualters tells us why not.

The U.S. Court of Appeals for the 1st Circuit upheld a lower court's order requiring a detainee convicted of hacking a prison computer system to pay for credit-monitoring services for prison employees.

In a unanimous panel ruling on April 12 in U.S. v. Janosko, the 1st Circuit affirmed District of Massachusetts Judge George O'Toole's restitution order. Retired U.S. Supreme Court Associate Justice David Souter, sitting by designation, wrote the opinion. Judge Kermit Lipez and Senior Judge Bruce Selya joined the ruling.

The appeal concerned O'Toole's order that Francis Janosko must pay the Plymouth County Sheriff's Department's $6,600 bill for credit monitoring. Court records show that Janosko hacked the Internet and employee and job applicant databases at the Plymouth County Correctional Facility in Plymouth, Mass. He was held at the prison from October 2006 through February 2007, first on a probation violation and then as a pretrial detainee.

Judge Orders Alleged Rape Victim to Testify:  Josh Funk of the Associated Press reports Lancaster County District Judge Paul Merritt has issued a contempt order against a 24-year-old rape victim, threatening up to 90 days in jail if she does not testify against her alleged attacker.  Glen Riensche, 62, is charged with sexually assaulting the then-child victim over a two-year period in the early 1990s.  The victim was initially cooperative with police, but then became unwilling to testify, stating that discussion of her previous sexual abuse would cause humiliation to her and her children.  Although victim testimony in these cases is often critical, president and founder of the Rape, Abuse, and Incest National Network Scott Berkowitz says this type of judicial action is counterproductive to efforts to get more rape victims to report their assaults. 

Nevada Bill Could Reduce Death Penalty Appeals:  Testimony was heard yesterday on a bill proposed in the Nevada Senate aimed at cutting delays in the state's death penalty process, reports Jaclyn O'Malley of the Reno-Gazette Journal.  Last year, the average time spent on Nevada death row was 17 years.  The bill, introduced by Senator Don Gustavson (R), will give local judges the discretion to appoint new lawyers for the inmate's postconviction proceedings, rather than leaving it mandatory under current law.  Supporters estimate the bill, if passed, could save the state millions of dollars.

Wiretapping Not Permitted in Massachusetts Gang Murder:  The Massachusetts Supreme Judicial Court today held police improperly used the state wiretap law to gather evidence about a murderous street gang.  The state's current law permits wiretapping only for offenses associated with "organized crime," defined as "a continuing conspiracy among highly organized and disciplined groups to engage in supplying goods and services."  Because the gang murder in this case was not tied to a "pecuniary or illegal business purpose" or the strict disciplinary structure characteristic of organized crime groups, the wiretapping statute was not applicable.  John R. Ellement of The Boston Globe writes two concurring justices used "unusually blunt language" to urge legislative expansion of the 1986 law.

New York Choking Law Has "Unprecedented" Impact:  The Elmira Star-Gazette (NY) reports officials yesterday announced an "unprecedented" impact from New York's recent strangulation law.  The law established three crimes for strangulation, two felonies and one misdemeanor, depending on the severity of effect to the victim.  Previously, alleged abusers could strangle a victim almost to the point of unconsciousness but avoid punishment if the victim did not display signs of physical injury.  More than 2,000 people were charged during the first 15 weeks after the law went into effect.  Although a majority of the charges were misdemeanors, New York law requires DNA collection of those charged, which could help other law enforcement efforts.   

With monetary issues now front and center in the crime debate, we have to consider costs and benefits of locking up the bad guys or letting them out.  One problem is that the full cost of letting them out (or the benefit of keeping them locked up) is impossible to measure.

A direct cost is borne by the people the predators prey upon.  Putting dollar values on crimes is dicey, but we can at least take a stab at it.  Other costs are even more difficult to quantify.  Suppose I buy a surveillance camera for my house for $300, a purchase made necessary by rising burglary rates, even though my house hasn't been hit yet.  That is $300 I don't have to spend on something else, such as a television, a vacation, or tuition.  The expenditure shows up equally in the GDP, but I have lost something in the quality of life by foregoing that other purchase.

Yesterday, I resumed taking public transportation to work after a hiatus, and I parked my car in the park-and-ride lot where I used to park it.  The other passengers promptly informed me that I was crazy to park there.  Smashed windows and thefts of car radios and entire cars are now rampant there.  All of the passengers who used to park there now either park at a less convenient stop or have family members drop them off.  There are costs to either alternative in lost time, but no economist can measure these costs.  Some other people, I am sure, have returned to driving their individual cars, with the impact on the environment that entails.  We can't measure that, either.

I have previously noted my view that our culture, including unfortunately our business culture, is shot through with deceit and slick practice.  I was therefore half-rooting for the government to win its "honest services" case in the Supreme Court against former Enron executive Jeffrey Skilling.

The honest services statute is broadly written, and therefore liable to abuse at the hands of a politically-driven executive branch.  In the present climate, that is no small concern.  On the other hand, the long-term dumbing down of standards of honesty strikes me as ominous.  Law is a blunt and inapt instrument for dealing with cultural decline, but has a certain utility nonetheless  --  as a sign, for example, that society is still capable of saying "no" and meaning it.

In Skilling's case, the Supreme Court took a bite out of the honest services statute by confining it to standard bribery and fraud.  It remanded the case to the Fifth Circuit to determine whether the prosecution's reliance in part on an impermissibly broad "honest services" theory was harmless error, in light of the mass of other evidence that supported Skilling's convictions under the honest services statute as narrowed.

Yesterday, a unanimous panel of the Fifth Circuit found the error harmless, affirmed all the convictions, and remanded the case to the district court for resentencing.  Skilling might get a small sentence reduction, but my bet is he won't.  Under the Sentencing Guidelines' still-viable relevant conduct rule, and the district court's much expanded discretion in the wake of Booker, Gall and Kimbrough, Skilling is likely to face the same music he faced the first time.  He is, after all, no less a breathtaking crook now than he was then.

 

Judge Refuses Killer's Guilty Plea:  A California judge has refused to allow a California man to plead guilty to capital charges, reports the AP.  Howard Smith is charged with shooting to death an 84-year-old father and his 48-year-old son while robbing their rural San Joaquin county property last month.  Smith refused a lawyer on Monday and attempted to plead guilty, even if the plea resulted in a death sentence.  The judge said she couldn't allow him to do so and assigned him a public defender.

Growing Body Count as Police Continue Search for Missing Woman Along Long Island Shore:   Long Island investigators discovered the remains of three more bodies on Monday, leaving a total of eight bodies that have been discovered on a several-mile stretch of Long Island shore.  (See previous post here.)  The search of the area began when investigators were looking for missing prostitute Shannan Gilbert, whose whereabouts are still unknown.  Chief of detectives of the Suffolk County Police Dominick Varrone said it was too soon to tell if any of the newest victims were connected to the earlier murders that were discovered in December, but that the four latest victims had been left there at least as long as the earlier victims.  Nearby residents are fearful and report that property values in the area have dropped significantly.  New York Times reporters Manny Fernandez and Al Baker have this story.

L.A. 'Grim Sleeper' Serial Killer May Have 8 Additional Victims:  Christina Hoag of the AP reports Los Angeles detectives believe the suspected "Grim Sleeper" serial killer may be responsible for up to eight additional killings, but the likelihood is strongest for three women whose photos and IDs were found in a secret stash in the killer's refrigerator.  Suspect Lonnie Franklin Jr. was arrested last July and indicted earlier this month on ten counts of murder and one attempted murder in connection with a string of slayings that started in the 1980s and extended into the 2000s.  Police are now focusing on the three women whose photos were found in Franklin's fridge along with a picture of another woman Franklin is charged with killing - Janecia Peters. The recently discovered photos were found separate from hundreds of other sexually explicit pictures of other women throughout Franklin's house.  Because Peters was found murdered, detectives fear the other women in the photos met the same fate.  Franklin has pleaded not guilty and is in jail awaiting trial.

House Approves Murder Registry Bill:  Todd Wilson of the Chicago Tribune reports the Illinois House approved legislation for a registry tracking convicted first-degree murderers for ten years after their release from prison.  "Andrea's Law," was inspired by the killing of Patricia Rosenberg's daughter, whose killer served only 10 years of a 24-year sentence.  The House vote was 97-1 and the bill will now move to the Senate.

New Jersey Governor Seeks to End Mandatory Parole Hearings:  New Jersey Governor Chris Christie is seeking to end mandatory parole hearings for inmates, reports Kibret Markos of NorthJersey.com.  In response to a bill that would widen the interval for mandatory parole hearings from three years to ten, Christie issued a conditional veto to eliminate mandatory hearings at any interval, noting that the bill as it stands "does not provide sufficient reform" to the current parole process.  Christie's move is receiving support so far from law enforcement and victims' families.  The New Jersey Senate may accept or reject Christie's conditional veto.

Two executions are scheduled for tomorrow:  Cleve Foster in Texas, previously noted here, and Daniel Wayne Cook in Arizona, previously noted here.  Even the Ninth Circuit didn't buy Cook's lethal injection challenge. Update:  The Supreme Court has granted Cook a stay pending review of his certiorari petition.  Michael Kiefer of the Arizona Republic reports that the stay is not based on the thiopental claim ...

But the stay is instead based on a petition arguing that Cook did not have effective legal counsel during his trial. Cook fired his court-appointed attorney and defended himself. After his conviction in 1988, he failed - or did not know enough - to present mitigating evidence from his life that might have prompted the trial judge to impose a life sentence instead of death.

The stay does not necessarily mean the execution will not happen in the next couple of days.  Dylan Smith reports in the Tucson Sentinel,

Cook's death warrant runs from 10 a.m. Tuesday until 10 a.m. Wednesday. He could still be executed in that period at the Arizona State Prison Complex in Florence if the court denies to hear his appeal before the execution order expires.

Cook was convicted of two counts of first-degree murder in the tortuous 1987 killings of Kevin Swaney, 16, and Carlos Cruz-Ramos, 26, in Lake Havasu City.

As so often happens, today's US Supreme Court decision in Cullen v. Pinholster resolves an important question but leaves others unanswered.

Let us take the decision first.  In the language of the statute every federal habeas lawyer knows by heart, a claim rejected on the merits by the state court cannot be the basis for federal habeas relief "unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

The term "application" in paragraph (1) refers to application of the rule of law established in a Supreme Court precedent to particular facts.  What facts?  "It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."

Certainly this is important in terms of having the case decided with proper respect for the state court decision.  Will it also reduce the present egregious delays in capital cases?  It should.

Not all that long ago, drunk driving was regarded as something anyone could be caught doing.  Drunk drivers were not thought of as criminals in the normal sense, and going to jail for a first or even a second offense was unusual.

It's true that drunk drivers are not criminals in the same way that the fellow who knocks over the liquor store is a criminal, or the guy who spends two or three years embezzling $50,000 from the bank.  But people generally understand when they've had one too many, and can adjust their behavior accordingly if they want to.

MADD wanted some adjusting as well from the courts' response to drunk driving, and largely succeeded.  In recent years, the prospect of going to jail for that offense, even if for only a short time, has considerably increased.

Today, we found out the amazing result.

Is tougher enforcement the only reason for so many more saved lives?  No, obviously.  Is it part of the reason?  You bet.

Moral of story:  Society gets the bad behavior it tolerates.  When it tolerates less, it gets less.  There's a message in their somewhere for the let-them-out-of-jail crowd.  Whether they get the message is a different question.

Former Duke Lacrosse Players Allowed to Pursue Lawsuit:  Mike Baker of the Associated Press reports U.S. District Judge James Beaty is allowing former Duke lacrosse players to pursue claims of malicious prosecution, concealment of evidence, and fabrication of false evidence against the ex-county prosecutor and police investigators.  In 2006 Reade Seligmann, Collin Finnerty, and Dave Evans were falsely accused of raping a stripper during a lacrosse team party.  All charges were dropped a year later when North Carolina Attorney General Roy Cooper declared the players innocent and victims of a "tragic rush to accuse".  The 2007 a civil lawsuit claims that former District Attorney Mike Nifong and investigators intentionally concealed DNA evidence and produced a misleading DNA report.

Death Row Inmate Executed After Appeal to U.S. Supreme Court Denied:  Bob Johnson of the Associated Press reports that Alabama death row inmate William Glenn Boyd was executed on Thursday. Boyd was convicted of the 1986 kidnapping and shooting deaths of Fred and Evelyn Blackmon.  Boyd and co-defendant Robert Milstead kidnapped the Blackmon's and forced them to cash a check for $5,000 before driving the couple to a rural area and shooting them to death.  Milstead pleaded guilty and testified against Boyd to avoid the death penalty.  Boyd had filed a petition to stop his execution claiming that the trial judge violated state rules when he overrode the jury's recommendation of life in prison without parole and sentenced Boyd to death.  The U.S. Supreme Court denied the appeal about three hours before the execution. Alabama Governor Robert Bentley also declined to grant clemency.

Court Overturns Shooting Conviction:  The Chicago Tribune reports the 7th Circuit Court of Appeals overturned Antonio Jones' conviction for the 2004 shootings that left four dead, including a 23-month-old boy.  Prosecutors allege Jones and two others shot four people during a robbery.  The appeals court found the trial court erred when it allowed police to testify about an informant's hearsay tip as evidence against Jones.

Man Avoids Death Penalty in Double Murder:  WYFF 4 News (SC) reports William Cannon Gresham, 25, agreed to a plea deal on Thursday to avoid the death penalty.  Gresham and co-defendant Shawn Owens, 22, are charged in the deaths of Eloise Corley, 66, and her sister Audrey Scull, 62.  Eloise was stabbed during a home burglary and when her husband Jerry and sister Audrey returned home they were kidnapped and shot.  Jerry was left in critical condition, but later survived.  Gresham pleaded guilty to all counts and will be sentenced after he testifies against Owens, for whom prosecutors plan on seeking the death penalty.

Texas Bill Would Raise Age Limit For a Capital Offense: Terrence Stutz of Dallas News has this story about a proposed bill in Texas that would expand death penalty eligible crimes to include murder of children up to 10-years-old. Currently in Texas, age six is the limit that triggers a capital offense. Texas has the youngest age limit for the murder of a child to be a capital offense, and most states classify the murder under the age of 12 as a capital crime. The legislation was approved by the Senate on Wednesday and now goes to the House for a vote.

No Clemency for Arizona Murderer: Amanda Lee Myers of the Associated Press reports that the Arizona Board of Executive Clemency decided yesterday by a 4-1 vote not to intervene in the execution of Daniel Wayne Cook scheduled for next Tuesday. Cook was convicted of two counts of first-degree murder for the 1987 killings of Kevin Swaney, 16, and Carlos Cruz-Ramos, 26, in Lake Havasu City. Cook and his roommate, John Matzke, stole $97 from Cruz-Ramos before gagging him and tying him to a chair. Cook and Matzke tortured Cruz-Ramos for six hours by beating and cutting him, burning his body with cigarettes, and sodomizing him before killing him by standing on a pipe over his throat. Cook sodomized Swaney before strangling him by hand. Matzke received a lighter sentence for testifying against Cook and was released in 2007. The board also voted against making a recommendation to the governor to delay the execution because of questions raised about the importation of two drugs used in the three-drug protocol. Cook's attorneys told the clemency board that Cook was only recently diagnosed with PTSD and brain dysfunction stemming from the abuse he suffered during childhood.

Convicted Sex Offender Arrested After 28 Years: Victoria Campbell of News 4 (NV) reports that 59-year-old Steven James, a convicted sex offender who has been wanted since 1983 for violating his probation, was arrested in Reno earlier this week by the US Marshals Service. James was convicted in Washington in 1983 of attempted indecent liberties with a child under the age of 14. He was sentenced to probation, but disappeared that same year. Christopher Hoye of the US Marshal for the State of Nevada says, "this arrest showcases how cooperation between federal and local law enforcement is paramount in locating fugitives fleeing from justice, in this case for nearly 28 years."

From the Ninth Circuit today, a 2-1 decision on the border search doctrine:

Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.

*                    *                  *

Because we agree with the district court's conclusion that the federal agents acted reasonably, and find that neither the scope of the intrusion nor the duration of the deprivation was egregious, we reverse the district court's order suppressing hundreds of images and videos of child pornography found on Howard Cotterman's computer and remand the case to the district court for further proceedings consistent with our decision.

The US Supreme Court today "dismissed as improvidently granted" the Fourth Amendment case of Tolentino v. New York, argued last week.  CJLF's brief in the case, written by Christine Dowling, is here.

The case involved the question of whether a driver's DMV record, indicating ten suspensions of his license, can be suppressed on the ground that the police did not have sufficient cause to stop him.

So why did the Court drop the case?

One of the things that bothered me about this case from the beginning is that the defendant was trying to suppress the wrong item.  Early in the proceedings, he moved to suppress both the police officer's identification of him as the driver and the DMV records.  But the trial court never ruled on the first point, and the defendant didn't press it in subsequent reviews.

From the argument, it is apparent that this bothered Justice Scalia also.  If the stop were illegal (something never adjudicated), then any observations after the stop would be suppressible.  The DA was ready with an answer that any such claim is now defaulted as a matter of state law.

So the Court might have said that the DMV records are not suppressible but the identification might have been except we are not really sure if that argument is waived because defendant didn't argue it in the state appellate courts.  Well, that would be messy.

That's my best guess as to the reason for the "DIG."  We will never really know.

The Supreme Court today gave the prosecution a big win in Connick v. Thompson, described below in the Heritage Foundation summary:

In a 5-4 decision by Thomas, the Court held that a district attorney's office cannot be held liable under section 1983 for failure to train its prosecutors based on a single BRADY violation. 

Thompson was convicted of armed robbery, and later, capital murder.  He chose not to testify at his murder trial because of his prior robbery conviction.  A month before Thompson was to be executed, an exculpatory crime lab report was discovered relating to the armed robbery.  The execution was stayed, and his robbery conviction was overturned.  A Louisiana appellate court reversed Thompson's murder conviction, and he was acquitted when retried. 

Thompson sued the district attorney's office under section 1983, claiming they had violated BRADY by failing to disclose the crime lab report.  The equally divided Fifth Circuit court affirmed a liability finding on the theory that the violation was caused by the office's unconstitutional policy and its deliberate indifference to an obvious need to train its prosecutors on BRADY. 

In reversing the Fifth Circuit, the Court noted that a pattern of similar constitutional violations is "ordinarily necessary" to demonstrate deliberate indifference.  Thompson did not prove a pattern of BRADY violations, and mistakenly relied on the "single incident" theory of liability hypothesized in CANTON.  Deliberate indifference in this context requires proof that city policymakers disregarded the "known or obvious consequence" that a particular omission in training would cause the violation.  Here, failure to train prosecutors in their BRADY obligations did not fall under CANTON; the attorneys are trained in the law, understood constitutional limits, engage in continuing education, and must satisfy licensing and ethical obligations.  Failing to train prosecutors in the grey areas of BRADY does not amount to "a decision by the city itself to violate the constitution." 

Ginsburg filed a dissent, joined by Breyer, Sotomayor, and Kagan.  Scalia (with Alito) joined the Court's opinion but also filed a concurrence addressing the dissent.

Of course this sort of issue should never arise.  Criminal litigation is not a game.  Those who insist on putting the truth first and ending all the clever maneuvering will never have discovery issues.  When I was an AUSA, although the law and Departmental regs did not require open file discovery, I provided it in every case (except where witness safety was an issue).  It shouldn't take Brady or any office training.  It should take only the conscience that brought you into the prosecutor's office to begin with.

Defendants ordinarily have much to fear from the truth, because it tends to send them to jail.  Those on the prosecution side should welcome the truth and let the chips fall where they may.

 

 

In August 2009, the US Supreme Court took the rare step of transferring an original habeas petition to the District Court.  "Original," in this sense, means that the habeas petition was filed directly in the Supreme Court, as opposed to the usual practice of filing the petition in the District Court and appealing up the chain.

The petitioner was Troy Davis, and the Court's action is described in this post.  Davis claims he is innocent of the crime for which he was sentenced to death, and he has a chorus of supporters.

The Court's action raised a lot of unsettled questions about how the restrictions in the Antiterrorism and Effective Death Penalty Act of 1996 apply to original petitions in the Supreme Court.  There are also issues about whether a strong claim of actual innocence by a death-sentenced inmate might render some of those restrictions unconstitutional as applied.  After the District Court denied the petition, there were further issues as to how that decision might be reviewed.

I noted in that prior post:

I suspect the swing votes on the Court are hoping the District Court comes to the same conclusion as the Georgia Board of Pardons and Paroles [that Davis is truly guilty] but, unlike that board, writes a thorough explanation of why. Then the case can go the way of Herrera [v. Collins, 506 U.S. 390 (1993).]

That is what happened.  A year after the transfer order, as noted in this post, the District Court found "Mr. Davis is not innocent."

Today, the high court denied three attempts to seek further review: No. 10-950, a purported direct appeal from the District Court, is "dismissed," along with denial of a habeas petition and "common law writ of certiorari."  In No. 10-949, the Court denies certiorari, declining to review the Eleventh Circuit's decision.  In No. 08-1443, the Court denies the same original habeas petition it transferred to the District Court in the first place.

What do these unexplained orders tell us about habeas procedure in such cases?  Not much.  The facts have trumped procedure in this case.  Troy Davis is guilty, so the Court is not going to use the case to tell us what happens in cases of actual innocence.

Update:  Lyle Denniston has this post at SCOTUSblog.  He notes there were no dissents to any of today's orders.

Lynne Tuohy reports for AP from Nashua, New Hampshire:

A 21-year-old man who admitted he took part in a machete and knife attack on a New Hampshire woman and her daughter was convicted of murder Friday, after jurors rejected his claim of insanity.

Minutes after the jury returned the verdict against Christopher Gribble, New Hampshire Superior Court Judge Gillian Abramson imposed the mandatory sentence of life without parole, telling Gribble, "infinity is not enough jail time."

Serial Rapist Gets 12 Life Sentences:  Truck driver and convicted serial rapist Marvin Martin, 33, was sentenced in a Georgia court today to 12 consecutive life sentences for abducting and raping seven women over a four-year period, reports Larry Hartstein of The Atlanta Journal-Constitution.  Prosecutors allege Martin searched for women, coaxed or forced them into his work 18-wheeler, and raped them at knife or gunpoint.  The case was solved in 2009 after police linked Martin to the crimes through a Department of Transportation number imprinted on his truck.  His sentence is the longest prison term handed down in Fulton County, Georgia for a sex crime.

"Why Sacramento can't get cell phones out of prison":  Debra Saunders of the SF Chronicle has this piece on the uphill battle to keep cell phones out of California prisons.  Saunders specifically notes that smuggling a cell phone into a state prison is still not a crime in California, and that a policy of searching prison guards on their way into the prisons threatens a significant financial burden because it will increase the officers' paid "walk time."

Teeth Not Dangerous Weapon Says Oregon Court:  Tom Hallman Jr. of The Oregonian reports the Oregon Court of Appeals yesterday ruled teeth are not a "dangerous weapon" to support a conviction for first-degree assault.  The court determined that the state law definition of a "dangerous weapon," i.e. "any weapon, device, instrument, material or substance under the circumstances in which it is used . . . is readily capable of causing death or serious physical injury," because they " does not include teeth because they "are not external to the human body."  Hat tip to How Appealing.

Heat of Passion?:  The Houston Chronicle reports a Taco Bell customer in San Antonio faces three counts of attempted capital murder after he shot an air gun at the restaurant manager, displayed a semiautomatic assault rifle, and exchanged gun fire with three police officers.  He was arrested after a three-hour standoff at a hotel.  The cause of the man's violent outburst?  The 50 cent price increase, from 99 cents to $1.49, for a Beefy Crunch Burrito.

"Fat Slobs" and the First Amendment:  In Villa Hills, near Cincinnati, Kevin Kennedy is suing police officer/building inspector Joseph Schutzman.  Schutzman arrested Kennedy following a dispute over zoning enforcement in which Kennedy called Schutzman a "fat slob."  The Sixth Circuit today ruled that Kennedy's suit can go forward.  AP story here; opinion here. 

No nation with even a rudimentary sense of survival would delay the questioning of captured terrorists to take time to advise them that they need not say a word and that a lawyer will be provided to assist them in clamming up.  I made that point earlier this month.

I'm thrilled that the Department of Justice is not as 100% clueless as it had seemed when Eric Holder couldn't give a coherent answer to Congress on the Miranda-and-terrorists question.  Now it's merely 90% clueless.

The key to understanding its cluelessness is in a paragraph farther down in the WSJ piece Kent cites:

The Justice Department believes it has the authority to tinker with Miranda procedures [by expanding the Quarles exception]. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

"I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."

Rep. Schiff hits the nail on the head.  If there were anyone at DOJ capable of reading a Supreme Court case, this would be pellucidly clear.

Robert Mueller's term as FBI Director ends next month.  Naturally there is rampant speculation about who will replace him.  Among those mentioned are Jim Comey, former Deputy AG under President Bush, and another former Deputy AG, Jamie Gorelick, who served under President Clinton.

I know Jim Comey decently well.  We were AUSA'S together in the Eastern District of Virginia in the 1990's.  When a Carter-appointed district judge in Richmond threatend to hold the US Attorney in contempt for having the audacity to fill his docket with federal gun charges under Project Exile, Jim and I represented her at the show-cause hearing.  The judge backed down, and Project Exile continued unabated (helping to reduce the murder rate in Richmond by more than 50%).

In a later post, I might say more about various FBI candidates, but for now I just want to say a word, not about Jim, but about Ms. Gorelick, who was a disaster as DAG and an even bigger disaster when she went to Fannie Mae and helped usher in the most crushing banking collapse since the Great Depression. For a variety of reasons, I doubt the President will be foolish enough to nominate her.  If he does, the Republicans should filibuster the nomination, and I expect that they will.

In United States v. Buenrostro, No. 08-16185, the Ninth Circuit shoots down an attempt to use FRCP 60(b) to evade AEDPA's successive petition rule.  This is a federal-prisoner §2255 case, but the statutes for state and federal prisoners are essentially the same for this purpose, and the court applies Gonzalez v. Crosby, 545 U.S. 524, 531 (2005).

Buenrostro wanted to use 60(b) to add a claim of ineffective assistance that he says he didn't know about before.  Nope. 

Buenrostro misunderstands the meaning of Gonzalez.  To show a defect in the integrity of his first § 2255 proceeding, Buenrostro must point to something that happened during that proceeding that rendered its outcome suspect. We have explained that "[f]raud on the court must involve an unconscionable plan or scheme which is designed to improperly influence the court in its decision." Abatti v. Comm'r, 859 F.2d 115, 118 (9th Cir. 1988) (internal quotation marks omitted).

Robin Hindery of AP reports on an astonishing and appalling plea bargain (emphasis added):

A 22-year-old soldier accused of taking a lead role in a brutal plot to murder Afghan civilians faces a court-martial Wednesday in a case that involves some of the most serious criminal allegations to arise from the U.S. war in Afghanistan.

Spc. Jeremy Morlock, of Wasilla, Alaska, has agreed to plead guilty to three counts of murder, one count of conspiracy to commit assault and battery, and one count of illegal drug use in exchange for a maximum sentence of 24 years, said Geoffrey Nathan, one of his lawyers.

His client is one of five soldiers from Joint Base Lewis-McChord's 5th Stryker Brigade charged in the killings of three unarmed Afghan men in Kandahar province in January, February and May 2010. Morlock is the first of the five men to be court-martialed -- which Nathan characterized as an advantage.

"The first up gets the best deal," he said by phone Tuesday, noting that even under the maximum sentence, Morlock would serve no more than eight years before becoming eligible for parole.

According to a copy of the plea agreement obtained by The Associated Press, Morlock has agreed to testify against his co-defendants. In his plea deal, Morlock said he and others slaughtered the three civilians knowing that they were unarmed and posed no legitimate threat.

WHAT?!?!?  For the leader of this rampage, anything less than death is a travesty.  And they agreed to a bargain that will let him out in eight years?  The Afghans are already outraged, and rightly so, and now our military leaders have agreed to a plea bargain that will pour gasoline on the fire?

Update:  A later version of the story omits the allegation that Morlock took a "lead role."  It says,

"Did everybody know, `We're killing people who are completely innocent'?" the judge asked.

"Generally, yes, sir, everyone knew," Morlock replied.

Morlock told investigators the murder plot was led by Staff Sgt. Calvin Gibbs of Billings, Mont., who is also charged in the case; Gibbs maintains the killings were legitimate.

My comment that the leader deserves the death penalty stands, but I will give the prosecutors the benefit of the doubt that Morlock is not the leader.  Even so, the plea bargain remains far too lenient.

Kent discussed Walter Olson's book, Schools for Misrule, earlier this week.  Today, I had lunch with Walter and a few friends at the Heritage Foundation, where Walter gave a talk on the massive pro-defendant (and generally leftist) bias in the nation's law schools.  I'm embarrassed to say that my alma mater, Stanford, is right up there, or down there, with the worst.  Stanford's Supreme Court Litigation Clinic is, for example, a true menace.  In a criminal case, I have never known it to take the side of anyone except a murderer or a terrorist (or both simultaneously).

The question is what can be done about it.  I have two suggestions, although I'm not that confident either will work.  First, remember that just about everyone on the faculty of these "elite" law schools thinks of himself/herself as a future federal judge, if not Justice.  But they know that there will be a Senate hurdle to clear, and that Republicans will have a say.  Thus the smart ones know it's in their interest to have a few conservatives on the faculty to speak up for them at crunch time.  This worked, in a way, with Justice Kagan, when she was Dean at Harvard.  She developed a reputation as being more open to hiring conservative faculty, and that reputation tamped down the intenstity of opposition to her when she was nominated to the Court.  A similar phenomenon is happening with Goodwin Liu, who has fellow Berkeley professor (and "torture memo" author) John Yoo saying that, for a Democratic choice, Liu isn't that bad.

The other strategy, also based in faculty self-interest, is in adjusting your alumi financial support to the school's willingness to hire faculty from both sides.  Mistaking me for a rich man (either that or just being on its mailing list), Stanford keeps sending me requests for donations.  I wrote back that I wouldn't be sending any dough until I saw more balance on the faculty.  Shortly thereafter, Stanford hired Judge Mike McConnell, a renowned conservative thinker.  I will bet good money that my letter had zilch to do with it, but I suspect that a batch of similar letters at least might have.

I expect the law school pro-defendant bias to last a long time, but there is a source of hope: students.  My students at Georgetown last semester made up their own minds, and seemed to regard the opinions of faculty as something other than Holy Writ.

Jurors' Privacy vs Public Rights:  Michael Tarm of the Associated Press reports that jurors of the perjury trial for retired baseball player Barry Bonds will remain anonymous, according to Judge Susan Illston.  Illston based her decision on a previous case in which Judge James Zagel withheld the names of the jurors in the trial of former impeached Illinois Governor Rod Blagojevich.  Zagel said that keeping the names of jurors private protected the jurors from media harassment and stated, "jurors summoned from the community to serve as participants in our democratic system of justice are entitled to safety, privacy and protection against harassment."  Opponents argue that in the 1987 racketeering trial of John Gotti, keeping the names of the jurors anonymous led to Gotti's friend being selected as part of the jury who took bribes, which resulted in Gotti being acquitted.  Chicago attorney Christopher Keleher states, "jurors engage in improprieties when not subject to public scrutiny."

Judge Orders Mental Exam for Loughner:  Amanda Lee Myers of the Associated Press reports U.S. District Judge Larry Burns ordered Jared Lee Loughner, 22, to undergo a mental exam at the Federal Bureau of Prisons Facility in Springfield, Missouri.  Loughner pleaded not guilty to charges of an attack on January 8th that killed six and injured thirteen.  Burns stated that the purpose of the exam should be whether Loughner is competent to stand trial, not whether he was sane at the time of the shooting.  Loughner's defense lawyer Jude Clarke was concerned that moving Loughner to Missouri for the exam could harm their attorney-client relationship. 

Georgia Supreme Court Considers Strict Execution Standard:  NECN News reports Georgia's top court is considering whether death row inmates have an unfair standard to prove they are retarded to avoid execution. (The story uses the term "mentally disabled," but that is not correct.) In 1998, Georgia was the first state to ban executing retarded inmates, which was followed by the U.S. Supreme Court's 2002 Atkins decision making this a constitutional rule.  Georgia is the only state that requires defendants to prove they are retarded beyond a reasonable doubt.  On Monday, the Georgia Supreme Court heard arguments from Alphonso Stripling who claims he cannot be executed because he is retarded.  Stripling was sentenced to death in 1989 for fatally shooting two co-workers.  Defense Attorney David Gossett claims Georgia's execution standard is too strict and that, "it's far better for a few non-mentally retarded defendants to be sentenced to life in prison than a mentally retarded inmate to be executed."  However, even without the categorical exclusion, the jury can still consider low intelligence as a mitigating circumstance, just as they could before the Atkins decision.  Further, the Atkins decision was based on a finding that laws including Georgia's established a national consensus, and it is a strange argument to say that the very law used to establish a rule violates the rule.

Georgia Man Convicted in Serial Killer Hoax Seeks Appeal: Greg Bluestein of the Associated Press reports that Andrew Scott Haley, who posted a video on YouTube under the name "catchmekiller" where he claimed to have killed 16 people, asked the Georgia Supreme Court on Monday to overturn his conviction. Authorities quickly realized he had nothing to do with these crimes. Haley was convicted of tampering with evidence and making false statements. On his video he gave "clues" about where bodies were located and urged people to help solve the crimes. Prosecutors said that Haley's lies wasted countless hours of detective work. Haley made reference to two missing persons cases, and sent the link to his video to the father of one of the women. He admits what he did was wrong, but believes that his free speech rights were violated. Haley's defense team claims the law used to convict him was flawed because it failed to distinguish between a false statement and a fraudulent one.   

Fox v. Vice, being argued today, is a somewhat crime-related case in that it involves attorneys' fees for a prevailing defendant in a suit against a law enforcement officer.  Unfortunately, the late Chief Vice is a particularly unsympathetic defendant.  He did, in fact, commit extortion against plaintiff Fox and was convicted of that crime.  He did not, though, commit the federal civil rights violation that Fox sued him for.  The District Court awarded him attorneys' fees, and the Fifth Circuit affirmed.

On its face, the civil rights suit attorneys' fee statute, 42 U.S.C. §1988, is symmetrical, applying exactly the same to plaintiffs and defendants.  The Supreme Court's rewrite of that statute to say that prevailing plaintiffs nearly always get fee awards and prevailing defendants almost never do was raw judicial activism.  It is also bad policy.

Falsely accusing someone of a civil rights violation is just as bad as committing a civil rights violation.  The victims of false accusations should be made whole just as the victims of real violations should be.

The asymmetry of the present rule is especially bad when litigation is used to influence public policy.  If the side opposed to a particular policy can position itself as the plaintiff in a civil rights case, then the threat of ruinous litigation expense can be used to convince a city council or school board not to a adopt a policy in the first place, even if the policy is actually constitutional and good policy.  If, for example, the ACLU sues a school district for hanging a "God Bless America" banner on a school the day after 9/11, then they should pay the district's attorneys' fees after their suit is thrown out.

But the issue before the Court in Fox is narrower than that.  Restoring the symmetry that the statute actually provides is not on the table.  Amy Howe has this argument preview at SCOTUSblog.

John McGinnis has this review in the WSJ of Walter Olson's book, Schools for Misrule: Legal Academia and an Overlawyered America.  He especially likes the part about legal clinics:

Mr. Olson superbly describes the rise of legal clinics, the law-school component ostensibly designed to give students hands-on training. He notes that the charitable foundations that first funded these clinics were more concerned with creating turbines of social change than with educating students. These days, many more clinics engage in public-interest litigation (defined by a rather predictable liberal agenda) than devote themselves to matters like the legal ordeals of small businesses, though thinking about a deli's contract dispute with a supplier would be more relevant to a law student's future working life. Some of these public-interest litigation shops have substantial funds. Mr. Olson observes that the budget of Brennan Center at New York University alone comes to roughly 80% of that of the Federalist Society, the national organization of legal conservatives that is routinely vilified by Democratic politicians for its inordinate--and, of course, pernicious--effect on our legal culture.

An online ad for the book has this blurb from Chief Judge Kozinski of the Ninth Circuit:  "Every year I hire as law clerks some of the best and brightest law students in the country, and spend a year wringing out of them all the wrong-headed ideas their law professors taught them.  Now I know why."

Of course, in light of his opinion today in the Stolen Valor Act case (an opinion that will be greeted warmly in legal academia), Judge Kozinski needs to wring some wrong-headed ideas out of himself.

It's admittedly an exotic question for a blog devoted almost exclusively to domestic criminal law, but an intriguing one.  And it has a domestic law twist, which I muse about toward the end of this entry.

Over the weekend, President Obama authorized U.S. participation in bombing Libya.  Surely at the time, the President knew that Gaddifi's headquarters would be among the first targets, if not the first.

There was of course a non-trivial likelihood that Gaddafi would be there.  Obviously he might have been injured or killed; cynical types might speculate that the whole idea was to kill him.  Was the targeting attempted murder?

I certainly don't think so, just as I didn't when President Reagan ordered a strike on Gaddafi to retaliate for Libya's terrorist bombing of a nightclub in Berlin where American servicemen were known to visit.  But there's more to this episode, starting with this story in CQ Roll Call. 

California Inmate Convicted for 1997 Rape:  The Associated Press reports California Inmate George Eugene Cross, 42, already serving a life sentence for assaulting three Sacramento County women in 2002, was sentenced to an additional 25 years to life for a 1997 rape of an Anaheim teenager.  Prosecutors used DNA evidence and testimony from the victim to link Cross to the rape. 

Pennsylvania Bill Would Expand DNA Collection:   The AP reports that Pennsylvania senate majority leader Dominic Pileggi proposed a bill to expand the state's DNA collection to include those accused of certain crimes after the preliminary hearing rather than waiting until conviction. If the bill is passed, Pennsylvania will join 24 other states with similar DNA collection laws.  The bill would also allow searches of the database for close but not exact matches to identify cases where the perpetrator is a close blood relative a person in the database.  The ACLU is opposed.

Family of Victims Files Lawsuit Against State of Arizona:  J.J. Hensley of The Arizona Republic reports that the family of a couple murdered by escapees from an Arizona prison last year, have filed a lawsuit against Arizona, the private prison operator, and the company that built the prison, alleging gross negligence.  Gary and Linda Haas were fatally shot and left in their burning camping trailer by Tracy Province, John McCluskey, and accomplice Casslyn Welch after Province and McCluskey escaped from a privately run prison near Kingman.  Daniel Renwick also escaped with Province and McCluskey, but headed to Colorado where he was captured after engaging in gunfire with local police. All three face federal murder and carjacking charges in connection with the Haas' deaths.  An attorney representing the family said "The purpose of this lawsuit is to get justice . . . not just for this family - the whole public is at risk."  After the escape the Arizona Department of Corrections conducted a review of the prison and found deficiencies in training and equipment, including an alarm system that frequently issued false alarms to the point where the staff ignored them.

Illinois Murder Registry Bill Passes Committee: Aledo Times Record (IL) reports that House Bill 263, also known as Andrea's Law, which calls for creating a murder registry much like sex offender registries, was passed out of the Illinois Judiciary II Committee today. The bill is named after Andrea Will, who was strangled to death in 1998 by her ex-boyfriend, Justin J. Boulay. Boulay was released in November after serving only half of his 24-year sentence. If passed, Illinois State Police would create an internet registry database of people convicted of first-degree murder, including information such as their names, residential addresses, and photographs.

 

John Fund has this article in the WSJ on the NPR defunding vote and George Soros's support for NPR.  The article includes this gem from the O'Keefe video:

[NPR's director of institutional giving] also noted that Mr. Soros's foundation first contributed to NPR in 2000 and that some of the money went to fund a documentary critical of the death penalty as it's employed in Texas. It aired on October 12, 2000, a day after then-Texas Governor George W. Bush was questioned about the death penalty in a debate with Democratic candidate Al Gore.

The Washington Times has the story today of a defendant convicted for a $600 drug deal.  He had previously been acquitted of much more serious charges  --  namely, racketeering and conspiracy charges arising from his leadership of a violent drug gang in Washington, DC.  He got an 18 year sentence for the $600 deal because the trial judge relied upon some of the information adduced with respect to the more serious allegations.

The use of acquitted conduct really riles the defense bar, and, to be fair, it does have a counter-intuitive feel to it, at least at first blush.  But it has long been used at sentencing, and rightly so.  The reason is simple.  "Acquitted" doesn't mean "didn't do it"  (O.J. Simpson, call your office).

If one believes that sentencing should reflect actual reality, there is nothing wrong with using acquitted conduct, and plenty right with it. 

Moving Forward in the Capital Punishment Debate: CJLF's Kent Scheidegger has this story in The Hill's Congress Blog about the legal developments surrounding the use of pentobarbital in lethal injections. Kent also discusses delays in capital cases, specifically post-trial litigation that can take decades and mostly involve claims related to the sentence, with little relevance to the actual crime. See a previous post here about pentobarbital-only executions.

New Hampshire Bill Would Make Fatal Home Invasions a Death Penalty Eligible Crime: The Associated Press reports a bill that would expand the state's death penalty to cover fatal home invasions was passed in the New Hampshire House on Tuesday. The bill is named after Kimberly Cates, who was killed by a machete and knife attack during a home invasion that also left her daughter maimed. New Hampshire currently has only six types of murder that are death penalty eligible under the state's statue. The last expansion was in 1994, when the killing of a judge was added. The last execution in New Hampshire was in 1939.

White House Makes Recommendations to Congress for Tougher Prison Sentences: Jennifer Martinez of Politico reports that Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, presented a set of 20 suggestions to Congress on Tuesday for addressing intellectual property problems and passing legislation requiring tougher sentences for certain IP crimes, which, according to Espinel, have shorter prison sentences and a high profit margin compared to other offenses.

Texas Switches To a Different Execution Drug: Michael Graczyk of the Associated Press reports that the busiest death penalty state in the nation is switching to the use of pentobarbital in its three-drug cocktail used for lethal injections. The switch is due to a shortage of sodium thiopental, which Texas has used since 1982 when it became the first state to do lethal injections. This shortage is forcing multiple states to find alternative drugs. Pentobarbital has recently been used in executions in Oklahoma and Ohio.

San Francisco Begins Enforcement of Sit/Lie Law: CBS San Francisco reports that police officers have begun enforcing a new law passed by voters in November that makes sitting and lying on sidewalks illegal between 7am and 11pm. For now, police officers are giving out verbal or written warnings and are directing people to city services instead of handing out tickets. Brian Molony, one of the founders of the new Haight Ashbury Merchants Association, says he hopes the law will help clean up the Haight, where businesses can have a really hard time.

Familial DNA Used in Rape and Robbery Case: Stephen Baxter of the Santa Cruz Sentinel reports on the second arrest in the nation to use DNA from a family member to connect a suspect to a crime. Three years ago, a 24-year-old employee at the Kind Grind Coffee Shop in Santa Cruz was threatened with a knife, sexually assaulted, and locked in the walk-in refrigerator as the suspect took the cash from the register and fled. On Friday, 21-year-old Elvis Lorenzo Garcia was arrested for the crime. Police sent DNA evidence to the state Department of Justice laboratory in November 2008. In November 2010, DNA from a relative of Garcia's was matched to the DNA from the crime scene. Authorities ruled out the relative and kept a close watch on Garcia, and police obtained arrest and search warrants for him. His arraignment was postponed until later this month,  when prosecutors say he will be charged with eight counts including kidnapping, robbery, sexual assault, burglary and the use of a knife.

Florida Child Welfare Agency to Make Changes After Girl's Death

Proposed Massachusetts Bill Could Eliminate Parole for Repeat Violent Offenders 

Prosecutor to Seek Death Penalty in Correctional Officer's Killing  

Pennsylvania Governor Signs Two Death Warrants

Minnesota Bill Would Resurrect Open-Ended Sentencing for Sexual Predators